The Unfulfilled Promise of the Fair Housing Act

Fifty years after President Lyndon B. Johnson signed it into law, the bill has failed to deliver on its key tenet: creating an integrated society.

Save this story

Save this story

Fifty years ago on Wednesday, President Lyndon B. Johnson signed into law the Civil Rights Act of 1968, commonly known as the Fair Housing Act. It was one of the last major pieces of Great Society legislation, and its passage did not come easily. Congress had already rejected two earlier versions of the law, and the 1968 Act seemed destined for a similar fate. But then, on April 4th, a gunman fired a single shot at Martin Luther King, Jr., and fate suddenly turned. With riots breaking out across the country and federal troops patrolling Washington, D.C., Johnson pushed the bill through a newly receptive Congress. Signing the law, he remarked that few in the country “believed that fair housing would, in our time, become the unchallenged law of this land. And, indeed, this bill has had a long and stormy trip.” It still has far to go.

In 1967, a year before King was assassinated, my parents bought a vacant lot in Detroit’s exclusive, mostly white Palmer Woods neighborhood. In the seventies, they built their dream home there, one of the proudest achievements of their lives. As a child, I never questioned how they managed to buy the lot during the height of the civil-rights movement. Just before my mother died, in 2013, she told me that they had been forced to rely on a highly compensated white intermediary, who concealed the fact that the ultimate buyers—my parents—were black.

My childhood home was close to Detroit’s so-called “segregation wall,” also known as the Eight Mile Wall. Situated some three miles away from our home, the wall was built in the early nineteen-forties, when Detroit was a boomtown with a rapidly growing population. It wasn’t until I became a civil-rights lawyer and constitutional-law professor that I learned of its troubling history. A real-estate developer wanted to build homes for whites on empty land near a black enclave in northwest Detroit. President Franklin D. Roosevelt had recently established the Federal Housing Administration (F.H.A.), which was created to facilitate homeownership by providing federal-loan guarantees to prospective buyers. This new agency should have worked in the developer’s favor, but government appraisers had given the black enclave a grade of D, or “hazardous,” and had colored it red on a map, making any homes the developer built in the area ineligible for F.H.A. assistance. Undeterred, the developer devised a compromise: in exchange for federal financial assistance, the developer would build a concrete wall—six feet high, a foot thick, and a half-mile long—separating the black enclave from the proposed white subdivision. The agency accepted the deal, and the wall still stands today.

As recent work by the economists Raj Chetty, Nathaniel Hendren, and Lawrence Katz has shown, neighborhoods have an enormous influence on their residents’ potential for success. According to the study, moving from a high-poverty neighborhood to a low-poverty neighborhood raised incomes by thirty-one per cent, improved college attendance, and reduced teen-age pregnancy.

Detroit’s segregation wall demonstrates the role that the federal government played in separating the races throughout the nation. The segregation that we continue to see today didn’t happen by accident. It was the result of official policy. Federal appraisal maps used racial classifications. The F.H.A. refused to guarantee black buyers’ mortgages. Public housing—which depended on federal funds—was explicitly segregated by race. The F.H.A. supported the use of racially restrictive covenants, which barred the sale of private homes to buyers of color.

The Fair Housing Act was meant to do two things: outlaw individual acts of housing discrimination and foster integration. It was the first time that Congress declared it illegal for private individuals to discriminate on the basis of race in the sale or rental of housing. This was no small thing. An early civil-rights statute, adopted in 1866, said that all citizens “shall have the same right . . . as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property,” but this protection was treated as addressing only government action. Before 1968, it was assumed to be perfectly legal for owners to refuse to sell homes to black families, or for a private bank to deny a potential black homebuyer a loan, or for a broker to lie and say that no homes were available.

The law successfully made these individual acts of explicit racial discrimination in housing transactions illegal, and residential segregation by race has since declined. But the Fair Housing Act has never fully delivered on its promise to promote and further integration.

Walter Mondale, one of the statute’s principal sponsors, said that the Fair Housing Act was intended to replace ghettos “by truly integrated and balanced living patterns.” But in 1968 residential segregation was stratospherically high. Whites were deeply committed to it. They used all legal and illegal means, including cross burnings, arson, and physical attacks, to keep blacks out of their neighborhoods. They formed thousands of homeowner organizations, complete with block captains, with the express purpose of keeping blacks out of white neighborhoods. And when these methods failed, they simply moved to suburbs.

It would have taken a remarkably strong federal statute, loaded with every enforcement measure in the book, to combat a social problem of that magnitude. And those measures are exactly what the Fair Housing Act didn’t have. The final bill included significant compromises that limited the Department of Housing and Urban Development’s enforcement capabilities. It also put the burden of enforcement on the victims, requiring them to either file a formal complaint with hud or sue in federal court to vindicate their rights.

Had its goal of promoting integration been implemented, the Fair Housing Act would have had the potential to be an extraordinary anti-segregation weapon. Instead, it was obstructed from the very beginning. Shortly after the law was enacted, the hud Secretary George Romney, as part of his Open Communities program, tried to require that a white Detroit suburb accept affordable housing in exchange for federal funds. His efforts failed miserably: President Nixon killed the initiative, and Romney eventually resigned. hud effectively refused to enforce that provision of the statute for the next forty-five years.

Late in President Barack Obama’s second term, in 2015, hud adopted meaningful regulations that put teeth in the Fair Housing Act’s mandate to foster integration. The new rules focussed on enhancing access to good schools, jobs, transportation, recreation, and social services. The regulations had strict time lines, which held both the local jurisdictions and hud accountable. Fair-housing advocates rejoiced. Then came the election of Donald Trump. In January of this year, hud Secretary Ben Carson announced that the department would postpone the Obama-era requirements until at least 2020.

Just before the Fair Housing Act was passed, the Kerner Commission warned that the nation was “moving toward two societies, one black, one white—separate and unequal.” To prevent that, it recommended that the nation enact a comprehensive federal open-housing law. And we did. But we have failed to meaningfully enforce it. The reality is that blacks and whites—even those with similar incomes—still largely live in separate worlds, with separate opportunities and separate schools.

Today, the segregation wall in Detroit is covered with a multicolored mural depicting neighborhood children, Detroit Tigers, Sojourner Truth, and images from the civil-rights movement. Mostly, it is a reminder of one of America’s many unfulfilled promises.